“A foolish consistency is the hobgoblin of little minds — Emerson

The State Bar Task Force on Discipline Standards had its initial meeting on Friday May 12 at State Bar HQ in San Francisco.  There to gird their loins for a battle with the hobgoblin which has haunted California disciplinary jurisprudence since 1986: the Standards for Attorney Sanctions for Professional Misconduct. The Standards were, in their own words “adopted by the Board of Trustees to set forth a means for determining the appropriate disciplinary sanction in a particular case and to ensure consistency across cases dealing with similar misconduct and surrounding circumstances.”  Of course, there was no Board of Trustees in 1986,but a Board of Governors.  Also no State Bar Court, at least not in the form we know it, not a small cadre of full-time professional judges but a large number of volunteer adjudicators, similar to the structures that existed in 49 of the other 49 states (and still exist in 48, Arizona being the only state that has adopted the idea of a full time discipline adjudicator.)  The driving force for the Standards was the need to establish a consistent analytical framework for those part time volunteers.  The raw material was the corpus of six decades of Supreme Court discipline decisions, reviewed by State Bar staff.

The Road to Hobgoblin Hall

In the beginning, the Supreme Court seemed a little skeptical.

“At the outset, we observe that the Standards for Attorney Sanctions are simply guidelines for use by the State Bar. Whether the recommended discipline is appropriate is still a matter for our independent review.” Greenbaum v. State Bar (1987) 43 Cal.3d 543, 550 (emphasis added.)

Despite their status as “mere guidelines for use by the State Bar” the Standards began to cited in the Supreme Court’s disciplinary decisions, which were voluminous in those days.  A Westlaw search turned up Supreme Court cases referring to the Standards, which almost certainly reflects almost every published Supreme Court decision since Greenbaum and soon the Supreme Court announced that it would “not reject a recommendation arising from application of the Standards unless we have grave doubts as to the propriety of the recommended discipline.” Lawhorn v. State Bar (1987) 43 Cal.3d 1357, 1366. Doubts were sometimes expressed.  The Supreme Court criticized Standard 2.2(a)’s prescription of a minimum of one year actual suspension for misappropriation regardless of mitigation as “not faithful” to the Court’s teaching (Edwards v. State Bar (1990) 52 Cal.3d 28, 38.   The Court found the Standards singularly unhelpful in In Re Morse (1995) 11 Cal.4th 184, 206  and turned to its “lodestar, the purposes of discipline” as articulated in Standard 1.3: protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession.”  The Supreme Court repeated its criticism concerning the vagueness of the Standards in In re Brown (1995) 12 Cal.4th 205, 220 and undertook a lengthy analysis of comparable discipline for tax offenses to determine the appropriate discipline. Still, the Standards were, more and more, treated as if they were substantive rules of laws, rather than mere guidelines, by the discipline prosecutors in the Office of Chief Trial Counsel.

Hobgoblin Hall

Standards-mania really took off after the Supreme Court’s decision in In re Silverton (2005) 36 Cal.4th 81, 92, which criticized the Review Dept. for failing to articulate a good reason for failing follow Standard 1.7(a).  It took a brace of Review Dept. decisions and a couple of trips up to Mt. Olympus to quell OCTC’s effort to elevate the Standards to something more than mere guidelines.(see In the Matter of Van Sickle (2006) 4 Cal. State Bar Ct. Rptr. 980.)  On remand from the Supreme Court, the Review Dept. increased Van Sickle’s discipline from 30 to 90 days actual suspension but still declined to follow the seeming mandate of former Standard 2.7 (unconscionable fee) for six months actual suspension; the California Supreme declined OCTC’s second petition for review.

Fixing The Standards

Nobody was really happy with the Standards.  Almost everyone ackowledged that they were vague, not well written and often of little use in determining the proper discipline.  An review of the comparable case law was still necessary, especially in light of Supreme Court precedent that “ultimately, the proper recommendation of discipline rested on a balanced consideration of the unique factors in each case [citations]”. In the Matter of Oheb (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 920 (opinion on remand.)

OCTC had the prosecutor’s natural proclivity to emphasize the common factors in each type of case; a misappropriation is a misappropriation is a misappropriation.  The client, and by extension, the public is harmed in every case. They wanted (and still want) the Standards to be something like the Federal Sentencing Guidelines, formulaic in that offense y will always yield discipline z.   Comprehensive review and analysis of the case law is too much work.  The Standards didn’t go far enough and the prosecutor’s efforts to push them in that direction floundered in the Drexel-era OCTC.

Respondent’s counsel wanted (and want) the individualized approach that the Supreme Court case law recited in Oheb dictates.  Every discipline case is about that particular individual’s fitness to practice law.  A misappropriation might result from an individuals dishonest intent, their reckless indifference to their client trust accounting obligations, or by negligence resulting from mental illness, substance abuse or extreme stress.  Respondent’s counsel believe that the Standards don’t go far enough to equating appropriate discipline to the degree of culpability, a concept touched on in the Standards but not well delineated as in the ABA Standards for Imposing Lawyer Sanctions.  We are skeptical on categorical deterrence

Adjudicators want both.  As acknowledge by the Review Dept., the Standards play an important part in achieving consistent results while honoring the need to tailor discipline to considerations unique to the offender.  Consistency will always be in tension with the individualized approach and adjudicators want an analytical framework that will help them get the balance right.

Prior efforts to fix the Standards have not advanced far in the perpetual crisis atmosphere of the State Bar; there was always a bigger fire burning somewhere.

Circa 2000, OCTC’s senior trial counsel Andrea Wachter drafted a revised version of the Standards that provided for low, mid-range and high end discipline categories.  OCTC proposed some revised Standards in 2010;  the former Board of Governors deferred discussion.  In 2013, the Office of General Counsel (not OCTC) wrote the current version of the Standards, which changed little of substance but cleaned up the text to remove the unfortunate mandatory language that had to be explained away in Van Sickle. OCTC wanted something more and the price for adopting the cleaner text was the creation of this Task Force.

The Task At Hand

The Task Force has given itself a deadline of September 2014 to produce….something.   Given that, a comprehensive re-write of the Standards does not appear likely.  The Chief Trial Counsel would very much like to have mandatory language dictating a discipline formula, although the Chief Trial Counsel’s assistant Mr. Fox, was rather quiet in the Task Force’s initial meeting (the Executive Director was kind enough to remind the participants that the State Bar now operates under the burden of “open meeting” laws.)  The discussion was mostly philosophical:  what are the purposes of the discipline system, what role should the discipline system play in making the client whole,  is deterrence part of what the Standards should try to accomplish.  The meeting started late and ended early.  Perhaps more critically, a crucial player, the representative of the California Supreme Court, former court counsel Beth Jay, was absent.

The Task Force reflects a diversity of experience that could result in a more useful version of the Standards.  But it can’t be distracted in a futile effort to enact some sort of mandatory sentencing guidelines.  That might impress the Legislature with the State Bar’s public protection zeal but the Supreme Court’s individualized approach is still the law.  Nor should it be distracted by trying to come up with a specific sanction for all the hundred or so rules and statutes that provide for discipline.  These hobgoblins should be banished by focusing on making the Standards a more useful tool to assist advocates and adjudicators in the discipline process.

One way to do that is to focus on the degree of culpability which depends on the mental state of the offender.  The necessary mens rea for culpability in a discipline matter is wilfulness but that is a term of art in discipline jurisprudence;  it means that you weren’t asleep when you did it (Zitny v. State Bar (1966) 64 Cal.2d 787.)  But there are degrees above that floor that have implications for the appropriate discipline.

The quickest way to make our Standards more useful is to look to the ABA Standards for guidance on creating a framework that looks at real factors in protecting the public (i.e. degree of culpability) and sets forth definite ranges of discipline for defined categories of conduct, not formulae for specific rules and statutes.